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At Morton Fraser Lawyers we have highlighted clarity as our guiding principle.

This directs the way we communicate, the way we advise, the way we conduct relationships with our clients and the way we are totally transparent and upfront about our charges. This applies to all our services from the straightforward to the more complex.

"Bosses can snoop on workers' private emails and messages, European court rules"; "Private messages at work can be read by European employers"; and "Your boss can now legally read your private emails and social media messages - should you be worried?" were just a few of the headlines following the European Court of Human Rights (the "ECHR") recent ruling in Barbulescu v Romania.

However, these headlines are a little misleading and, in fact, the judgement of the ECHR did not dramatically change the legal landscape in this area but rather reflected previous court and tribunal decisions.

In this case Mr Barbulescu was asked by his employer to set up a Yahoo messenger account for work purposes. It was the employer's policy that its computers could not be used for personal purposes and Mr Barbulescu was made aware of this and also that his communications were "under surveillance". Mr Barbulescu however, used the Yahoo account to send personal messages to his fiancé. The employer discovered this as a result of monitoring his communications and raised the issue with him. However, he denied that he had been using the account for personal purposes. As a result, the employer went onto Mr Barbulescu's Yahoo account and collected evidence of his breach of policy. The personal emails were then used in the disciplinary proceedings against Mr Barbulescu which resulted in his dismissal.

Mr Barbulescu raised a claim against his dismissal in the domestic courts but was unsuccessful. The issue was then referred to the ECHR. Mr Barbulescu argued before the ECHR that his article 8 rights (right to respect for private and family life) under the European Convention of Human Rights had been violated. The question for the ECHR was whether or not the Romanian Government had breached Mr Barbulescu's article 8 rights by failing to positively protect them. It is important to note that article 8 will not be breached if the action complained of was a proportionate means of achieving a legitimate aim and member states have a degree of flexibility in this respect.

The ECHR decided by a majority that his article 8 rights had not been violated. The majority were of the view that the employer was permitted to check whether or not Mr Barbulescu was performing his work. Moreover, it was important that the employer had only conducted a more thorough search of his Yahoo account following his denial that he had used it for personal purposes. Mr Barbulescu himself was unable to offer a compelling reason for using the Yahoo account for personal purposes and simply explained that he did it due to mobile tariffs being expensive. Therefore, in considering the balance of interests between the parties, the ECHR determined that any interference with the employee's article 8 rights had been proportionate.

It is important to note the limits of this decision and, in particular, that it does not, as some of the headlines claim, allow employers to indiscriminately spy on employees' private messages. In particular, this case involved an account which was specifically set up by the employee at the request of the employer to be used for work purposes on a computer provided by work. As such, this decision does not legitimise employers looking through an employee's own device and reading their messages. Moreover, there was a policy in place here which stated that work equipment was to be used for work purposes and Mr Barbulescu was aware that he should not use the Yahoo account for personal correspondence.

It is also worth bearing in mind that there is a legal framework in the UK which provides limits on what an employer can do in terms of monitoring email and internet use of employees, such as the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000, and this decision does not alter that framework.

Nevertheless, this decision does illustrate that employees would be wise not to use work email accounts or equipment supplied by employers (such as mobiles or laptops) for personal purposes. Ultimately, any such equipment supplied belongs to the employer. Employers should ensure that they have a robust internet and social media policy in place which makes clear whether work equipment or email accounts can be used for personal purposes and if so, whether this is restricted to, for example, lunch breaks. In addition, if employees' communications may be monitored, this should be made very clear to the employees at the outset. While the ECHR decided in favour of the employer in this case, it is a fact specific decision and employers who wish to monitor their employees' communications should ensure that they are aware of the limits on their ability to do this and legal advice should be taken if employers are unsure of what they can and cannot do.

Disclaimer

The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers. Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.

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